Moving to a New Website

Dear Readers,

I am moving to a new website: Intermediate Scrutiny.  The change is necessary because I am longer located in Arizona.  Because of life circumstances, I recently moved to Washington State and became a licensed attorney there, and it is too difficult for me to keep up with issues in Arizona to write about them.

However, I am going to continue blogging at Intermediate Scrutiny which will continue to focus on cutting edge constitutional issues, but have more of a Washington State slant.

I hope you will join me there.

Thank you for all your support.

Joe Thomas

Vaughn Index in Colorado Public Records

A Vaughn index is a tool used in public records disputes where the person requesting documents, will ask the court to compel the records custodian to list all responsive documents and explain why or why not the documents should be released.

Okay, this is complex topic.  Let me try to explain this concept in another way.  If there is a denial of a public records request, then generally one needs to file some sort of motion to compel the production of the requested documents with the appropriate court.  But the records custodian has all the documents?  The problem is both the court and the requester does not know if the records custodian considered all documents.  Thus, a Vaughn index works as a secondary motion to compel, where the court tells the records custodian to make a list of all responsive documents and to legally justify their conclusion.

Continue reading Vaughn Index in Colorado Public Records

Banning Homelessness in Colorado

It appears a sad new trend in Colorado is to create policies or laws, treating homelessness as a criminal condition.

A new report, “No Right to Rest: Criminalizing Homelessness in Colorado” which details the efforts cities and municipalities have gone to in an apparent attempt to discourage homeless people from coming to the area.  “No Right to Rest” (the full report can be seen below) is a collaboration between Tony Robinson, PHD and Allison Sickels of the University of Colorado at Denver and the local advocacy group Denver Homeless Out Loud.

The timing of the report coincides with the recent development the City of Denver uses potentially unconstitutional area bans against people it deems as nuisances.1 Joe Thomas, Denver Attempts to Ban People Deemed Nuisances, available at: http://cocommonlaw.com/2015/04/denver-attempts-ban-people-deemed-nuisances/.

Denver City and County Building -- Photo Taken by CoCommonLaw
Denver City and County Building — Photo Taken by CoCommonLaw

Continue reading Banning Homelessness in Colorado

References   [ + ]

1. Joe Thomas, Denver Attempts to Ban People Deemed Nuisances, available at: http://cocommonlaw.com/2015/04/denver-attempts-ban-people-deemed-nuisances/.

Denver Attempts to Ban People Deemed Nuisances

The City of Denver is working on banning people it considers nuisances from high traffic areas.  And does not appear there is much concern in the community about the practice.

Well, I have a big problem with the practice and I will argue the practice is facially unconstitutional.

The policy — little-known outside law enforcement and the courthouse — raises questions about the balance between public safety and civil rights, and the effectiveness of banning drug addicts, shoplifters and general troublemakers from one area of the city.” Reported the Denver Post.1 Jennifer Brown, Banned From 16th Street Mall: Dozens Ordered By Court To Stay Away, Denver Post, available at: http://www.denverpost.com/news/ci_27575680/banned-from-16th-street-dozens-ordered-by-court. Removing undesirables from public “right-of-ways ” is a practice by used Denver Law Enforcement, sanctioned by the courts, and given the stamp of approval by the Denver Post Editorial Board.2 See Denver Post Editorial Board, 16th Street Mall Ban is a Legitimate Tool, Denver Post, available at: http://www.denverpost.com/editorials/ci_27598284/16th-street-mall-ban-is-legitimate-tool.

no nuisance

— Photo Credit – m.a.r.c., Flickr.

Continue reading Denver Attempts to Ban People Deemed Nuisances

References   [ + ]

1. Jennifer Brown, Banned From 16th Street Mall: Dozens Ordered By Court To Stay Away, Denver Post, available at: http://www.denverpost.com/news/ci_27575680/banned-from-16th-street-dozens-ordered-by-court.
2. See Denver Post Editorial Board, 16th Street Mall Ban is a Legitimate Tool, Denver Post, available at: http://www.denverpost.com/editorials/ci_27598284/16th-street-mall-ban-is-legitimate-tool.

Snow, the ADA, and Handicap Parking

Every year Colorado receives a couple of large snow storms.  Sometimes there is so much snow problems are caused trying to clear it.  This year, at least in Boulder, Colorado it created at least one potential violation of the Americans with Disabilities Act (ADA).

For example, recently a local Denver news station televised a story about fire hydrants covered by the snow and the public safety implications.  Because in order to fight fires, firefighters must: 1. find the fire hydrants (which are buried by the snow) and 2. dig them out, all before they are able to be used.  Both steps take valuable time in fighting fires.

However, the snow does not only create problems for firefighters.  It can create problems for the disabled, too.  Specifically, it appears handicap parking spaces, are at least at times, used as a dumping grounds for snow, leaving the disabled without designated parking spots.  All the while, potentially violating the ADA.

Snow Plowed into Handicap Parking Space - Photo Taken by CoCommonLaw
Snow Plowed into Handicap Parking Space – Photo Taken by CoCommonLaw

Continue reading Snow, the ADA, and Handicap Parking

How to Research Early Colorado Case Law

Here is a tip for how to research early Colorado case law.  All that is needed is: 1. internet access; and 2. a Google account.  While it is not necessary, The Bluebook – A Uniform System of Citation can be very helpful in determining which print reporters to search.

Since I have graduated law school, there have been a few times where I have read cases and there are citations to cases from the 19th and even 18th centuries.  My problem is I was not able to access these cases to read because I could not find them anywhere.  I do not use Lexis or Westlaw (and even when I did, those databases sometimes had omissions for early case law).  A simple search into the major search engines did not return the text of the decision either.  State supreme court cases are generally only available on the internet (sites without a paywall) from the 1950s and on.

When presented with this situation I turned my search to Google Books.  Google works with several of the largest libraries in the world (including many of the top law libraries) to digitize books that are in the public domain.  My idea was to search through case law reporters that are now in the public domain and digitized by Google.  Because with any luck, I would be able to find the case published in the reporter.

I will walk through this tutorial with the example case Salomon v. Webster, 4 Colo. 353 (1878).   This court case is heard by the Colorado Supreme Court only two years after Colorado is granted statehood to the union.  This is going pretty far back.

19th Century Colorado Case Law
Citation to 19th Century Colorado Case Law

Continue reading How to Research Early Colorado Case Law

Public Records Requests as Contracts

Record request — boom contract!

Okay, it is not that easy, but in all seriousness I think  Colorado’s public record laws should generally be treated as a contractual agreement for public policy reasons.

I have alluded to several times in previous blog posts on here, I believe individuals are able to use contractually based arguments effectively in the pursuit of public records.  To take this argument a step further, many provisions in Colorado’s public records laws would suggest that a request is the start of a contractual situation.

Contracts

Photo Credit: NobMouse Flickr.

For the sake of this article I am going to use one of the more straightforward definitions, that I think will serve the purposes of this article as being as accessible as possible to all.  “A very common definition is that a contract is a promise enforceable at law directly or indirectly.”1 Arthur Linton Corbin, Corbin on Contracts, One Volume Edition, at 2; See Restatement (Second) Contracts  § 1 (1981).

Continue reading Public Records Requests as Contracts

References   [ + ]

1. Arthur Linton Corbin, Corbin on Contracts, One Volume Edition, at 2; See Restatement (Second) Contracts  § 1 (1981).

Colorado Public Records at Common Law

There is a strong history of Colorado allowing its citizens access to public records.  Since the beginning in this state, public policy of the state always prioritized a citizen’s right to know and a right of access to public records.

Public records are an important right for citizens .  Records can inform citizens when exercising the right to vote.  Records can serve as important documentation against corruption or abuse in the government.  Records can also give the government legitimacy.

The history of Colorado’s public records laws can be traced back to the common law in England.  Judges created rules when and how individuals were able to access records.  At first, public records were only available to interested parties, but that rule relaxed and individuals no longer needed to prove matters related to him as a prerequisite to a public records request. “These are public books which every body has a right to see.” Herbert v. Ashburner, 1 Wils. 297, 297 (1750).  However the right to public records was never absolute. The right to inspect public records did not extend to records considered quasi-public, such as the court rolls of an English manor.  Hereford v. Bridgewater,  Bunb. 269, 269-70  (1729); see Buck v. Collins, 51 Ga. 394, 396 (1875) 1  “But while the public interest thus provides a mode by which anyone may learn the truth upon inquiry, it is no part of the public scheme to make this exposure universal.  It provides that those who seek the information can get it, but it does not and ought not flaunt the information its records contain before the public gaze, and thus make a scandal of a public necessity.” Buck v. Collins, 51 Ga. 394, 396 (1875) (holding there is no right for a businessman to spend days or weeks in the clerks office inspecting public records, since the record keeper is charged with keeping the integrity of the records, thus his time would be spent as a sentinel and not performing the other duties of his job). 

 

Colorado Supreme Court Courtroom

— Photo credit: Jeffrey Beall, Flickr.

Continue reading Colorado Public Records at Common Law

References   [ + ]

1.   “But while the public interest thus provides a mode by which anyone may learn the truth upon inquiry, it is no part of the public scheme to make this exposure universal.  It provides that those who seek the information can get it, but it does not and ought not flaunt the information its records contain before the public gaze, and thus make a scandal of a public necessity.” Buck v. Collins, 51 Ga. 394, 396 (1875) (holding there is no right for a businessman to spend days or weeks in the clerks office inspecting public records, since the record keeper is charged with keeping the integrity of the records, thus his time would be spent as a sentinel and not performing the other duties of his job). 

Colorado Public Records Denials

Records custodians can and do at times refuse public records requests.  But when does a denial occur?

This relatively simple and straight-forward question is actually complex and at times open to interpretation.  Neither the the Colorado Open Records Act (“CORA”), nor the Colorado Criminal Justice Records Act (“CCJRA”) defines what a denial is.1 See Colo. Rev. Stat. § 27-72-202 CORA; Colo. Rev. Stat. § 27-72-302 CCJRA. However, as both statutes permit custodians to “deny the right of inspection,” of records,2 Colo. Rev. Stat. § 27-72-204(2) CORA; Colo. Rev. Stat. § 27-72-305(5) CCJRA. even though it is not defined in the statute.  It is also important to note it does not appear the courts have weighed in on the matter in either denial of CORA or CCJRA records.

Denial pack

— Photo credit: Flickr Andres Musta

In this article I want to focus on when a denial of public records occurs.

Continue reading Colorado Public Records Denials

References   [ + ]

1. See Colo. Rev. Stat. § 27-72-202 CORA; Colo. Rev. Stat. § 27-72-302 CCJRA.
2. Colo. Rev. Stat. § 27-72-204(2) CORA; Colo. Rev. Stat. § 27-72-305(5) CCJRA.

Colorado, A Fracking Mess

There does not seem to be a lot of agreed upon information about the effects of fracking.  A lurking culprit for this is the nondisclosure agreements signed between companies and individuals.  Because of this, it can be difficult to find information about any of the alleged harms of fracking, first-hand.

However, the Colorado Oil and Gas Conservation Comission (COGCC) can help.  On the COGCC’s website is a database of the last 2,500 public fracking complaints.

The complaints, themselves, are kinda hidden.  The only way I know to access the database is by going to the COGCC’s homepage: http://cogcc.state.co.us/.  Then along the left-hand side menu click on “Complaints.”  After accessing the complaints page, scroll down to the bottom there is a link called entitled, “Complaint incident search tool.”  Click on that and you will be at the searchable database.

Colorado Fracking in Weld County - Photo taken by CoCommonlaw
Colorado Fracking in Weld County – Photo taken by CoCommonlaw.com

What we don’t know about the effects of fracking can hurt us. There is still not agreement if fracking causes environmental harms such as: earthquakes, contaminated water, etc.  Until Colorado picks its head out of the shale and creates a public policy exception against non-disclosure agreements in environmental lawsuits, then society will never truly know what the harms are or are not from fracking.

Continue reading Colorado, A Fracking Mess